Hello my friends, it\u2019s Anthony Bandiero here, attorney and senior legal instructor for Blue to Gold Law Enforcement Training, bringing you a roadside chat.<\/p>\n
This one comes from an officer in California. A call comes in of a man with a gun standing on a street corner, and when the officer arrives he sees the person but no firearm.<\/em><\/p>\n All right, this one comes from an officer in California, and the basic question is: can you search a person based on a reporting party calling in that the person has a firearm?<\/p>\n The context here is a police officer who receives a call of a man with a gun. You know, for example, the guy was on a street corner holding a firearm. Upon arrival the police officer sees the person, but no firearm. What can we do? Can we now search them for the firearm? Can we pat them down? Does it include backpacks and so forth? All right, let\u2019s walk through this step by step.<\/p>\n So the first thing we want to know is that there\u2019s a case out there called Florida v. J.L.<\/em>, U.S. Supreme Court. What happened there was an anonymous tip came in that this person, a young person, possessed a firearm. Nothing about, you know, brandishing, just that they had a firearm. The police arrived, they did see that the person was there, matched the description, patted him down. He was holding an illegal firearm because he was a juvenile. And the U.S. Supreme Court said that that was an unlawful detention and an unlawful frisk.<\/p>\n Here\u2019s why. There\u2019s two things when it comes to acting on an anonymous tip. Number one, why should we believe the person, right? How do we know that they\u2019re being trustworthy? And the second thing is, okay, how do they know what they know? It\u2019s the same type of analogy, or an analysis, that we use for confidential informants.<\/p>\n In J.L.<\/em> the problem is we have a truly anonymous tip. This person cannot be tracked down, right, so there\u2019s no consequences on the line to the police. The other thing is we don\u2019t know that they\u2019re being reliable, because they\u2019re not telling us any kind of inside information, no corroboration. They\u2019re just basically accusing a person at a bus stop of being a criminal.<\/p>\n And if the U.S. Supreme Court buys off on this, if they allow these detentions, essentially what they\u2019re allowing is a license to harass. That just makes sense, right? So we\u2019d be running around with our heads cut off, because all these calls are coming in where anonymous tips are saying hey, that guy\u2019s selling drugs, that guy has an illegal gun, right, all this kind of stuff. And that\u2019s not enough.<\/p>\n And also I want to know, why do you think it\u2019s illegal for the person to have a firearm? If they say I saw this young guy with a gun, clearly that\u2019s illegal, right? So we can. But the first part\u2019s missing. We don\u2019t know that they\u2019re reliable.<\/p>\n Let\u2019s bring it, let\u2019s modernize this a little bit though. We also have another case called Navarette v. California<\/em>, where a person called 911 and accused Navarette of being a drunk driver. However, let\u2019s just assume for the argument\u2019s sake that they don\u2019t want to get involved. They don\u2019t want to sign a citation, they don\u2019t want to sign a witness report. They just want to share this information with you and be left alone.<\/p>\n Is that person reliable? Right, is that a truly anonymous tip? And the answer is no, they\u2019re not truly anonymous, and yes, they are presumed to be reliable. And here\u2019s why. Modern-day 911 systems track the caller, right. We know who they are, we can track them down if need be.<\/p>\n And what can we do if they give us a false report? What can we do if we do act on this tip, and we pull over Navarette, and he\u2019s like, oh let me guess, you got a call that I\u2019m a drunk driver. You\u2019re like, yeah. And I guarantee you that person is my ex-wife, this is the third time she\u2019s done this in, you know, a week or two, right. Then you could go back and get her subscriber info, she didn\u2019t leave her name, and charge her with a crime. So the Supreme Court in that case said people understand the consequences of giving a false report to 911, and they are more reliable than a truly anonymous tip.<\/p>\n Okay, the second thing is, okay fine, we can, let\u2019s say in this case we actually have something that we can track down, so they\u2019re presumed reliable. The second part is how do they know what they know, and is what they\u2019re telling you a crime?<\/p>\n Well, right now we have very limited facts, right. But we have a guy holding a gun on a street corner. That would, in my opinion, be reasonable suspicion<\/a> that criminal activity is afoot, right. Why should a person be holding a firearm? Even if we don\u2019t have, you know, evidence of a brandishing, or a threatening, or a pointing and so forth, it\u2019s still at least a moderate chance of criminal activity. Why are you pulling out a gun where other people can see you, you know, on a street corner? Is it that maybe the witness did not see who he\u2019s trying to intimidate and so forth? And I think we at least have reasonable suspicion. I mean, in J.L.<\/em>, if the tip was reliable that would be a good stop, because it was a young person, right.<\/p>\n There have been other cases where simply showing a firearm in public, just seeing a firearm, is not reasonable suspicion, and I completely agree with that. This is simply, you know, imagine you have lawful concealed carry like in a state like Texas, right. Tennessee, most states are lawful carry, you can get concealed weapons permits and so forth. And the way the wind blows your jacket back, and somebody sees the firearm and they call 911. Fine, they\u2019re reliable, because they\u2019re using their own phone and so forth, and they say hey, I saw this guy carrying a concealed weapon. In those states that is not enough to detain that person. There\u2019s no, you know, moderate chance of criminal activity. Just having a firearm in and of itself is not going to be reasonable suspicion in states that have shall issue type of concealed weapons permits, right.<\/p>\n And we also cannot stereotype people. Oh Anthony, what if it\u2019s a high crime area? No, we don\u2019t work like that. In fact, maybe the logic is that people in high crime areas should be seeking concealed weapons permits. So we don\u2019t want to stereotype, and just because they\u2019re in a high crime area, you know, the weapon is probably illegal. That\u2019s not how it works either.<\/p>\n So there you go. So that\u2019s the two part: can we trust them, and are they giving us information that would lead us to believe that criminal activity is afoot. I think the answer is yes here. But there is also one more caveat in California.<\/p>\n In California, unfortunately I don\u2019t agree with this, but in California and New Jersey, and it would be in another state like this, there is a presumption that a person, even if it wasn\u2019t the clearly displayed kind of case, which this is more clearly just, you know, the jacket flying back, there is some case law that basically says that you can presume that the gun is illegal because concealed weapon permits are so rare in a place like New Jersey and certain places in California, right. It\u2019s just so rare, and you can make that presumption. Again, I don\u2019t like it. I don\u2019t like the fact that they don\u2019t have concealed carry to begin with, they\u2019re not shall issue states, but that\u2019s not what we\u2019re here for. But just also know that.<\/p>\n So the answer in this case for my cop in California, I think it\u2019s a good stop. Now let\u2019s go through what can we do. I don\u2019t think we have probable cause<\/a>, right. I think we have reasonable suspicion. So our search is going to be a pat down. So we start with the person\u2019s outer clothing, you know, we go from there.<\/p>\nCan you detain someone based on a call that they have a gun?<\/h2>\n
What did Florida v. J.L. say about anonymous tips?<\/h2>\n
Why isn\u2019t an anonymous tip alone enough for reasonable suspicion?<\/h2>\n
Is a 911 caller reliable if they won\u2019t give their name?<\/h2>\n
Does a man with a gun call give you reasonable suspicion?<\/h2>\n
Is seeing a gun in public enough to detain someone?<\/h2>\n
Do California and New Jersey presume a gun is illegal?<\/h2>\n
What can officers actually do on a man with a gun call?<\/h2>\n
Can you pat down a backpack or a purse for a gun?<\/h2>\n